Kiobel brief shows State/DOJ split over human rights litigation

By Alison Frankel
June 15, 2012

When John Bellinger of Arnold & Porter was the legal adviser to the State Department in the administration of George W. Bush, the Justice Department filed about a dozen amicus briefs addressing the Alien Tort Statute, a 1789 law that has become a modern vehicle for international human rights litigation. Bellinger told me on Thursday that he signed every one. When foreign nationals use the ATS to bring cases in U.S. courts for conduct that took place overseas, foreign policy is implicated, and the State Department wants a voice. That’s why Bellinger believes it’s so significant that when the Justice Department filed its new amicus brief in the reformulated Kiobel v. Royal Dutch Petroleum case at the U.S. Supreme Court, State Department legal adviser Harold Koh did not sign it.

“That seemed to be a not-so-subtle message — more to the human rights community than the Supreme Court — that State did not agree with the Justice Department position,” said Bellinger, who blogged about the DOJ brief on Wednesday night at Lawfare. “The Obama administration was in a tight spot in this one.”

The DOJ brief, signed by Solicitor General Donald Verrilli, argues, tepidly, against the application of the Alien Tort Statute against Shell by Nigerian nationals who claim the oil company was complicit in state-sponsored torture and murder in their country. That’s a switch in sides for the government, which had supported the Nigerians in Kiobel‘s first trip to the Supreme Court, when the issue was whether corporations could be liable under the Alien Tort Statute. The Justice Department said they could, in an amicus brief that State Department adviser Koh signed.

But then the justices changed the question in Kiobel from corporate liability to whether the statute even extends to extraterritorial conduct in the first place. That wasn’t a novel issue for the Justice Department, which had argued in a 2004 amicus brief at the Supreme Court that ATS does not apply overseas (and, according to Bellinger, the Bush administration made the same argument in several other appellate courts as well). So the Obama DOJ was in a bind. To support the Nigerians, it would have to repudiate what Bellinger called “seven years of well-argued briefs” by previous Justice Department lawyers. But to support Shell, it would have to turn its back on the State Department and human rights advocates.

Verrilli and his team searched for some middle ground in a brief that truly deserves the overused description “tortured.” They argued that the ATS shouldn’t apply in Kiobel, which has no connection whatsoever to the United States. But the SG also said there’s no reason to establish an absolute bar on ATS litigation based on conduct on foreign soil. If a foreign official who allegedly engaged in torture now resides in the United States, for instance, that official can be sued under the ATS, according to the brief, because otherwise the United States might be perceived to be harboring the defendant. (Those were the facts in Filartigan v. Pena-Irala, the 1980 Supreme Court case that pioneered use of the ATS in human rights litigation.) “A close examination of the historical context and purposes of the ATS, the modern-day line of cases, and Congressional action suggests that there are circumstances in which it would be appropriate for a court to recognize a cause of action based on the ATS for violations of international law occurring outside the United States,” the brief said.

The Solicitor General cautioned, however, that the purpose of the Alien Tort Statute was “to avoid, not provoke, conflicts with other nations,” and modern-day ATS suits “have often triggered foreign government protests.” Such foreign policy concerns, the brief said, argue against using the ATS “to create a cause of action that challenges the actions of a foreign sovereign in its own territory, where the defendant is a foreign corporation of a third country that allegedly aided and abetted the foreign sovereign’s conduct.” (Those are the facts, as you know, in the Kiobel case.) The United States is also concerned, as former Bush State Department legal adviser Bellinger noted in a Lawfare blog post last month, about reciprocal actions by other countries, permitting human rights suits in their courts against U.S. officials and corporations.

The new Justice Department brief avoided opining on whether the same exercise of caution it urged with regard to foreign officials and corporations would preclude ATS actions against a U.S. citizen or U.S. corporation, or cases involving conduct “within the U.S. or on the high seas.” (The reference to the high seas is interesting, considering that the Nigerian plaintiffs argued in their new Kiobel brief that the ATS extends to conduct on foreign soil because it was drafted to address piracy on the high seas.) By leaving open the possibility of ATS suits against U.S. corporations engaged in alleged human rights violations overseas, the new DOJ brief is, according to Bellinger, “not entirely inconsistent” with its previous amicus brief endorsing corporate liability under the ATS.

I emailed counsel for the Kiobel plaintiffs, Paul Hoffman of Schonbrun DeSimone Seplow Harris Hoffman & Harrison, but didn’t hear back. EarthRights International Legal Director Marco Simons said in a blog post about the DOJ brief that he has “rarely been so disappointed in my government.” The brief, Simons said, argues for a weird disconnect between U.S. and foreign corporations that would put U.S. business at a disadvantage. Moreover, he asserted, the government’s argument against meddling in international human rights is “at odds with U.S. foreign policy, which frequently criticizes other nations – and even authorizes hostile action – based on their treatment of their own citizens.”

Shell counsel Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan referred me to a corporate spokesman, who didn’t return my call. A Justice Department spokesman declined comment.

 

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